Credit: Sharon Givoni
Is Your Packaging Copy-Proof? Tips for Creatives
Imagine you’re an independent creator selling a beautifully packaged skipping rope in an eco-friendly box. You’ve put a lot of thought into the design, with a unique colour scheme, hand-drawn illustrations, and a logo that reflects your brand’s natural, active vibe. Then, one day, a similar skipping rope appears from a different seller, and the packaging looks surprisingly close to yours—the colours, the font, even the layout of the design elements. Could this lead your customers to think it’s a part of your brand?
This scenario illustrates a tricky challenge in the creative industry, where packaging is vital for brand identity. Whether you’re selling craft kits, cosmetics, or skipping ropes, your packaging helps you stand out. But what happens when a competitor’s design appears a bit too familiar?
As recent court cases show, determining whether packaging crosses the line from inspiration to imitation can be complex. Courts in Australia consider various factors when assessing these situations, and there’s no blanket rule that applies across the board. Here, we’ll walk through a hypothetical example, look at recent court cases, and discuss how you can protect your unique packaging.
Hypothetical Case: Skipping Rope Imitation
Consider this scenario: you’ve created a premium line of skipping ropes in eco-friendly boxes, with a soft pastel palette, botanical illustrations, and minimalist typography that reflects your brand’s natural, active aesthetic. Your packaging quickly becomes recognisable, and customers love it. Then, a competitor launches a skipping rope in a box that looks similar in colour and style, featuring soft greens and botanical prints. At a glance, a potential customer might momentarily confuse it with your brand.
You might think this looks like a clear case of packaging copying, but the law is not always straightforward. If it is not a copyright case, then for a claim to succeed, the original packaging usually needs to have built a recognisable reputation and show that consumers are likely to be misled by the similar packaging.
Courts will also assess other factors, such as whether the competing product name or logo is distinctly different, which can often prevent confusion.
Case Study 1: Better Beer and Sidewinder
In the 2023 Better Beer case, an Australian court examined whether a competitor’s beer packaging too closely resembled that of a well-established brand. Brick Lane Brewing alleged that a competitor’s beer cans, with similar colours and design layouts, could mislead consumers into thinking they were related. However, the court ruled against Brick Lane, noting that while the designs had similarities, the product names were distinctly different, which helped avoid confusion.
For creatives, this decision highlights the value of having clear, unique branding elements on your packaging. Distinct features like a logo or unique typeface can be the difference between a customer seeing your skipping rope as unique or mistaking it for a competitor’s product. Courts may view these differences as adequate to prevent confusion.
Case Study 2: Natural Raw C vs Nature’s Delight
Another case in 2023, involving Natural Raw C and Nature’s Delight in the coconut water market, provides further insights for creatives. Here, the court considered whether one coconut water brand’s packaging resembled another’s enough to mislead customers. The court recognised that certain elements, like colours and shapes, are commonly used in the coconut water industry, which meant that similar colours alone did not suggest a deliberate attempt to mislead consumers.
For creatives, especially those in industries where aesthetic trends are shared, this is an important lesson.
Key Takeaways for Protecting Creative Packaging
Having an attractive package is just the start; building a recognisable reputation for your brand is essential. If your skipping rope packaging is identifiable by its unique colours, illustrations, and logo, it’s easier to argue that a similar design could mislead customers. Building this reputation takes time, but it strengthens your case if you ever face competition with a similar look.
Courts have found that quick, momentary confusion is usually not enough to prove misleading packaging. For example, a customer might initially mistake two skipping ropes with similar packaging but can quickly identify the brand once they see the logo or name. Courts tend to dismiss cases where confusion is fleeting and clarified upon closer inspection.
In certain creative fields, specific design choices—like using natural colours or minimalist fonts—are popular and shared among brands. Courts in Australia are mindful of this context. For example, a skipping rope packaged in a recyclable box with a muted colour palette might look similar to another wellness brand, but if those elements are common in the industry, it doesn’t automatically indicate copying. Courts often consider whether the design features are unique to your brand or widely used.
And what about copyright?
While copyright may apply to aspects of your packaging, such as original illustrations, unique patterns, or graphic designs, it doesn’t protect the overall “look and feel” or functional elements like shape and size. Copyright generally safeguards specific artistic and literary expressions, which can sometimes cover parts of creative packaging. However, we won’t dive into copyright specifics here; to learn more about copyright in packaging, see our dedicated blog on the topic. For additional information on copyright law, go Arts Law: https://www.artslaw.com.au/information-sheet/copyright/.
How Sharon Givoni Consulting Can Help
Protecting your product’s packaging is essential in a competitive market, especially when your design plays a central role in brand identity. At Sharon Givoni Consulting, we understand the creative industry and the importance of unique, recognisable packaging. Whether you’re developing a new product, refining your brand’s look, or want guidance to avoid potential look-alikes, we’re here to help.
Our team has extensive experience supporting creatives in industries ranging from cosmetics and wellness to craft supplies and card design. We can assist you in assessing the distinctiveness of your packaging, advising on industry standards, and providing support in any legal challenges that arise.
Please note the above article is general in nature and does not constitute legal advice.
Please email us info@iplegal.com.au if you need legal advice about your brand or another legal matter in this area generally.